Berhe G Tukue v CDC Diocasting Pty Ltd [1995] IRCA 75

INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

VI 1739 of 1994

BETWEEN:

berhe g. tukue Applicant

AND

c.d.c. diocasting pty ltd Respondent

REASONS FOR JUDGMENT

8 March 1995 Judicial Registrar Murphy

Introduction

The applicant in this matter is a trained teacher from Ethiopia. After arriving in Australia he worked for six years at Toyota in Port Melbourne. In around mid 1994 he decided, for family reasons, to cease his employment there and to seek to obtain employment closer to his home in Dandenong. He attended at the Dandenong office of the C.E.S. and that office arranged for him to be referred to the respondent as a candidate for a Jobstart program. This program involves employment and during the initial period the employer receives a wage subsidy from the Commonwealth.

The applicant attended at the respondent's plant and was interviewed. He was subsequently advised that he was the successful applicant for a position. He commenced employment on 29 August 1994 and was terminated on 27 September 1994. He seeks a remedy under s.170EE of the Industrial Relations Act 1988 ("the Act").

The Applicant's Duties

The applicant gave evidence that when he commenced employment, he was employed in the upstairs section of the respondent's factory. This section was involved in a small assembly line and packing operation for motor vehicle components which were manufactured by the respondent downstairs. The applicant worked in this section of the factory for two or three weeks. He said his work performance was good in that area.

During that time, due to apparent communication breakdowns, the applicant was late for work on more than one occasion. Apparently as a result of this he was moved from one team to another in the upstairs section. After a further occasion on which he arrived at the plant after it had opened he was called into the office of Mr Terry Cashmore, supervisor of the relevant area, and a discussion occurred between the parties in relation to his attendance record. Mr Cashmore said that the discussion related to his unsatisfactory work performance about which he had been counselled on a number of occasions. The applicant gave evidence that he understood from this discussion that he had been sacked and he then went downstairs and saw the union representative. Following the intervention of the union representative a discussion occurred between this representative and the manufacturing manager of the respondent. As a result of this, enquiries were made as to whether a position was available to the applicant downstairs. The manufacturing manager, Mr Valle did ascertain that a position was available and he then referred the applicant to Mr Wenke who was the production manager of the respondent. Both Mr Valle and Mr Wenke gave evidence that they advised the applicant that the position downstairs was for a trial period of one month. The applicant denied this and maintained that the first time that the issue of him being on probation was raised was in these proceedings.